WND EXCLUSIVE

Report: Obama's executive orders not necessarily law

Pronouncements at 'lowest ebb' when measures conflict with 'will of Congress'

Bob Unruh joined WND in 2006 after nearly three decades with the Associated Press, as well as several Upper Midwest newspapers, where he covered everything from legislative battles and sports to tornadoes and homicidal survivalists. He is also a photographer whose scenic work has been used commercially.

President Obama already had been liberal in his application of his “pen” and his “phone” in issuing orders to make changes he wants in the United States when he made that famous statement, “I’ve got a pen and I’ve got a phone.”

He was calling for help for America’s struggling economy, which after more than five years of his leadership, still shows massive unemployment and huge deficits, and he was suggesting he could and would simply order changes where he feels they are needed.

“While the president’s ability to use executive orders as a means of implementing presidential power has been established as a matter of law and practice, it is equally well established that the substance of an executive order, including any requirements or prohibitions, may have the force and effect of law only if the presidential action is based on power vested in the president by the U.S. Constitution or delegated to the president by Congress,” the new report, written by attorneys Vivian S. Chu and Todd Garvey, said.

Specifically, there are problems whenever a presidential whim stretches into the authority of Congress, or other limits, the report said.

Citing the writing of Justice Robert H. Jackson in a historic Youngstown Sheet & Tube Co. v. Sawyer case as a precedent, the evaluation from the CRS said there are problems with executive orders when they legislate, or write law, because the Constitution gives that authority to the Congress.

Under Jackson’s analysis, which involved a case in which the government wanted to take control of steel mills during wartime, a move the Supreme Court rejected, a president’s authority is “at a maximum when he acts pursuant to an express or implied authorization of Congress.”

In a gray area are mandates from the president where the authority is uncertain, and the president’s authority is “at its ‘lowest ebb’ when he ‘takes measures incompatible with the express or implied will of Congress … for he can only rely upon his own constitutional powers minus any constitutional powers of Congress over the matter,'” Jackson analyzed.

What that means for a sitting president is that orders “issued pursuant to authority provided to the president by Congress, as distinguished from orders that are based on the president’s exclusive constitutional authority, may be legislatively modified.”

“Congress may revoke all or part of such an order by either directly repealing the order or by removing the underlying authority upon which the action is predicated. Either of these actions would appear to negate the legal effect of the order,” the research service said.

The Congressional Hispanic Caucus has given the White House six pages of recommendations on how the Obama administration might proceed with executive orders to curb deportations and other actions by states that would discourage illegal immigration.

Rep. Luis V. Gutiérrez, D-Ill., a leading advocate for rewriting the nation’s immigration laws, has threatened Republicans in Congress if they do not move on an immigration overhaul bill before the July 4 recess, Obama will bypass Congress with executive orders.

“If we don’t see a bill moving forward and concrete steps being taken … they can watch the president … pick up his pen,” Gutierrez said. “It’s one or the other. I see it coming.”

The newest report on presidential authority seemed to throw cold water on Obama’s “pen and phone” threat to Americans. In it, he said, “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward…”

The CRS said while congressional repeals of executive orders aren’t common, it did happen to President George H.W. Bush, whose direction for establishment of a human fetal tissue bank for research was shot down by Congress.

Congress simply adopted legislation that stated the executive order “shall not have any legal effect.”

Congress also can halt an executive order by refusing to fund it.

Subsequent presidents also can modify or cancel orders from previous presidents, the research service said.

“Executive orders, presidential memoranda, and proclamations are used extensively by presidents to achieve policy goals, set uniform standards for managing the executive branch, or outline a policy view intended to influence the behavior of private citizens. The U.S. Constitution does not define these presidential instruments and does not explicitly vest the president with the authority to issue them. Nonetheless, such orders are accepted as an inherent aspect of presidential power. Moreover, if they are based on appropriate authority, they have the force and effect of law,” the report said.

“The president’s authority to issue executive orders does not include a grant of power to implement policy decisions that are not otherwise authorized by law. Indeed, an executive order that implements a policy in direct contradiction to the law will be without legal effect unless the order can be justified as an exercise of the president’s exclusive and independent constitutional authority.”

Critics of Obama’s agenda have been harsh in their condemnation of Obama’s orders.

Commentator David Limbaugh said, “Under the administration of President Barack Obama, as never before in my lifetime, there is reason to be a bit afraid of the federal government. … Without any basis in the Affordable Care Act – or in any other law or constitutional provision – he has unilaterally handed out exemptions from that ‘law of the land’ like candy and has suspended its operation at his absolute whim.”

“Has any president of this nation ever behaved and spoken as though he felt that being the president gave him royal powers – that he could just snub his executive nose at the other two coequal branches of the federal government and treat the states that didn’t cow to his dictates as if they were bastard stepchildren? Has anyone in that office ever acted so entitled?”

“‘The National Defense Resources Preparedness’ EO is a blatant desecration of our Constitution. It is a direct attack on the rule of law, our liberties and private-property rights,” he said. “The astounding audacity in the document itself is that it never limits its execution to a time of war. In fact, it grants the president total command and control of most industries and consumer supplies, even in times of peace!

“This presidential order is another sweeping power grab in a long and dangerous legacy of government overreaches. Our founders would have absolutely never allowed it, and we shouldn’t, either.”

Congress appears already to be cognizant, working on an ENFORCE Act, H.R. 4138, “which would allow the House or Senate to authorize legal action against the administration’s willful neglect of the law,” the Hill reported.

Also under consideration is Faithful Execution of the Law Act, H.R. 3973, to require that the government report whenever a decision is make to ignore an existing federal law and explain why.

House Republican Conference Chair Cathy McMorris Rodgers of Washington state and Oversight and Government Reform Committee Chairman Darrell Issa of California talked about the goals in a recent conference call.

“Clearly President Obama has taken the über presidency to a whole new level,” McMorris Rodgers said. “While it’s not new for presidents to stretch their constitutional limits of power, executive overreach has accelerated at a faster pace under President Obama.”

She said that throughout “his tenure we have witnessed a pattern.”

“When the president disagrees with laws, he ignores them. And now that Obamacare isn’t working, President Obama is rewriting his own law on a whim.”

Issa said the left “is constantly bringing suits to the EPA based on not doing enough on clean air and clean water and so on, and they’re always granted standing and then ultimately they often are forcing the EPA through ‘sue and settle’ to do things.”

“And yet when the president does something through executive order, or the EPA does something beyond their jurisdiction, it’s very hard to get into court,” he said.

Talk radio icon Rush Limbaugh said the danger is high, based on House Speaker John Boehner’s admission legislation would not be attempted because Obama would ignore it.

“This is the president of the United States effectively nullifying the legislative branch of government,” an outraged Limbaugh said. “He’s basically saying … and he has in practically these words, said this, ‘I got a pen and I got a phone and if they don’t do what I want I’m going to it anyway.’

“That’s not a ho-hummer to me. That is major. If the chartered body in our government that makes the law decides not to because they don’t think it’ll matter, because the executive branch will just ignore it, I mean that’s a breach of serious proportion,” he said.

“That is a constitutional challenge and crisis that is very real that nobody apparently has the courage to do anything about because of the president’s race,” he said.